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Civil-Common Law Divide (Contract law (See Class Week 6) (Common law…

- - - - Civil: Today, civil law interpretation usually tries to give effect to the intention of the law. Common: also legislative purpose. Yet, main source for common law is cases (narrower scope when interpreting statutes).
    - - Art 1142 of the Code Civil says that default remedy for breach of contract should be damages but court interpreted this differently. For sales contract, it concerns an act to give, so SP is the default remedy.
      - Not so much distinction for this area. Common law distinguish cases they don't want to use and can overrule, while civil law do not use precedents.
  - - - France: Separated legislature and executive from judiciary, and had controlled over judiciary by making them apply the law made by legislature.
      - England/US: Judges were the progressive forces protecting the individual against tyranny of the ruler. It was commonly accepted that judges shape the law.
- - - - Public law was replaced by laws written by American common lawyers. Courts followed stare decisis.
      - After independence in 1946, Philippines had Spanish Civil Code, revamped with American influence, especially in the area of public and commercial law. Country then made it more localised and accommodate with indigenous culture.
      - Code Commission revised the code, and hence Civil Code of 1950. But there is still strong common law influences. In 2000, the case of Serrano v Isetann - referred to Spanish Code of Commerce yet referred to US case law.
      - Hybrid legal system, where American influence is stronger than Spanish, but both still present. What divide? Useful to talk about a divide?
      - After Spanish-American war, Philippines came under the rule of US. US incorporated common law into Spanish Civil Law system.
      - Spain colonisation until 1898, then US colonisation. Spain was undergoing codification, thus a lot of codes were transplanted to the Philippines, e.g. Spanish Code of Commerce, Spanish Civil Code.
      - Labour and indigenous laws
        
        External influences
        
        Spanish era (civil): minimal impact because Spanish did not have labour legislation. Whereas US (common): laws were copied directly, e.g. compensation for injury, prohibition against women and children working at night, prohibition against payment of wages in goods.
        
        Internal influences
        
        A lot of overseas foreign workers, and companies setting up factories to manufacture goods in Philippines because of cheap labour and lax regulations.
        
        So they create their own laws.
  - - - Precedents, with binding ratio.
      - Common lawyers would think this is more like common law.
    - - Still similar to determining the outcome from the outset.
      - Guiding cases are not authority. It is still the code. These cases are just supplementary.
      - Civil lawyers would think it is still civil law.